A former Federal Court Judge in Madison, Illinois was limited in the scope of the expert testimony that he could offer at trial. A Court held that some of his opinions invaded the province of the presiding judge.
The underlying case involved a fatal accident that occurred in 2005 when a vehicle carrying 6 people ran off a road and rolled over; one person was killed and others were injured. The Estate of the deceased sued two highway contractors that were under contract with the Illinois Department of Transportation. Significantly, the contractors had formed a joint venture with each other to carry out the project.
The gist of the underlying case was that the contractors failed to post adequate barriers and to properly warn oncoming traffic of hazardous conditions. The defendants counterclaimed, alleging that the deceased drove too fast, drove while fatigued, and drove on the shoulder of the road, all of which were claimed to have proximately caused or contributed to the collision, death and injuries.
Insurance Disclosure Led to Pre-Trial Settlement
Before trial, the parties settled the negligence suit for $1 Million under a demand for policy limits, but before the discovery cut-off date. The settlement was based, in part, on a representation by defense counsel for the joint venture, Richard Green, that the $1 Million policy was the total amount of available liability coverage. The policy limits were tendered because the magnitude of the injuries and the risk of a verdict for the Plaintiff(s) could have resulted in excess exposure on the Defendants had policy limits not been tendered. After the settlement had been reached, the negligence lawsuit was dismissed with prejudice.
Revelation of Additional Insurance Prompts Second Suit
Later, it was determined that the contractors had individual liability insurance policies in addition to coverage for the joint venture. Therefore, the Estate filed a new lawsuit. It claimed that the negligence suit would not have been settled had the Plaintiffs known of the additional liability coverage.
Former Federal Judge Renders an Opinion as a Defense Expert in Second Suit
Former Judge Patrick Murphy stated that the defense counsel in the negligence suit had no reason to believe that there was insurance in addition to that on the joint venture.
But he went further, and that’s where problems arose. He stated that while he had no opinion on whether or not there really was additional coverage, it was the duty of the Plaintiffs’ lawyer to determine if there was. He stated that the lawyer could have propounded detailed interrogatories and used other methods of discovery. Mr. Murphy also stated that under Rule 26 of the Federal Rules of Civil Procedure, defense counsel had no duty to investigate whether there was other coverage. He stated that it was “gross negligence” by the Estate’s attorney not to have done so.
Court Held That the Scope of the Expert’s Opinion Was Overly Broad
The Court in the coverage case granted a motion to strike Judge Murphy’s testimony about Rule 26. It held that whether or not there was compliance with Rule 26 was strictly within the province of the court. The Court also held that Mr. Murphy’s testimony about whether or not plaintiffs’ counsel was negligent in the underlying case were impermissible legal conclusions.
Source: Madison Record